International Law Update – The Conflict in Yemen, the International Criminal Court, and the Srebrenica Massacre

Yemen

Human Rights Watch called for the release of Yemeni activist Hisham al-Omeisy, whom Human Rights Watch claims has been detained by Houthi authorities. Human Rights Watch states that al-Omeisy was arrested by 15 officers on 14 August 2017 in Sanaa. They claim he has not been charged, brought before a judge or given access to a lawyer or his family, and that he is in an undisclosed location. Amnesty International has made a similar statement.

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Please don’t take my arbitrators away: a clash of terms between arbitration agreements and institutional rules – Andrew Foo

It is reported that the courts of the People’s Republic of China (“PRC”) have refused to enforce a Singapore International Arbitration Centre (“SIAC”) award under Article V(1)(d) of the New York Convention, on the basis that “the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties…”.

In this case, two parties entered into a contract for the sale and purchase of iron ore.  However, the arbitration agreement therein contained a potential (and potent) clash of terms:

  • The arbitration agreement provided for a three person panel, and
  • The arbitration agreement also provided for arbitration under the SIAC Rules, and the SIAC Rules contain an expedited procedure and state that if this expedited procedure applies, the case would be referred to a sole arbitrator (unless the SIAC determines otherwise).

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Same-Sex Couples in Australia: A Right to Divorce But What of Marriage?

On 3 August 2017, the Human Rights Committee (HRC) of the United Nations handed down a landmark ruling that Australia had breached its international human rights obligations because it did not allow same-sex couples in Australia to divorce, when they had legally married overseas. This decision comes at a time when the political temperature on the same-sex marriage debate in Australia is heating up.

While it is clear from the HRC decision that same-sex couples in Australia have a right to divorce, it is less clear whether they have a right to marriage and whether Australia will recognise it. Under the Marriage Act 1961 (Cth), marriage is currently defined as “the union of a man and a woman”. This definition was introduced in 2004 under then-Prime Minister John Howard. Before then, same-sex couples could allegedly marry.

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Can there be justice for Otto Warmbier? – Lorraine Finlay

(“Mansudae Monument” by Evan Ritli/Flickr)

There is no such thing as a funny dictatorship. This seemingly obvious point was highlighted with the death of Otto Warmbier, who was until recently imprisoned in North Korea. While Hollywood movies like Team America: World Police and The Interview have, from time to time, parodied the North Korean regime, Warmbier’s death is a stark reminder that this regime is not a joking matter.  

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Attorney-General George Brandis outlines Australia’s position at international law on the right to self-defence against imminent attack

On 11 April 2017 Attorney-General Senator the Hon. George Brandis deliver a public lecture at the TC Beirne School of Law, University of Queensland, on the “The Right of Self-Defence Against Imminent Armed Attack In International Law”. While the doctrine of self-defence against imminent attack is well established at international law the Senator seeks to place the doctrine a modern context in which states must take account of non-state actors who have the capability to commit harm transnationally, and in which alongside the threat of terrorism by physical attack lies the threat of cyber attack. The key, according the Senator, is placing the word “imminent” in this modern context.

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Investor-State Dispute Settlement: Controversial, but Constitutionally Valid? – Lisa Burton Crawford, Patrick Emerton and Emmanuel Laryea

Investor-State Dispute Settlement (ISDS) clauses are a prominent feature of many modern International Investment Agreements (IIAs). They are included in nearly all the IIAs to which Australia is a party. Typically, an ISDS clause allows a foreign investor (often a corporation) to challenge a government decision before a panel of private arbitrators who have the power to make decisions and make awards that are binding and enforceable.

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New Issue of the Martin Place Papers

The Martin Place Papers are an occasional series published by the International Law Association (Australian Branch) to provide wider access to the proceedings and outcomes of ILA sponsored seminars and conferences. No 7 in this series has now been published. Martin Place Paper No 7,The International Law Context of Recent Developments in Indigenous Policy contains the proceedings of a seminar convened jointly by the ILA and the National Centre for Indigenous Studies (NCIS) at the ANU in late 2015.

The paper by ILA member Greg Marks, ‘Lifestyle choices? Closing down Aboriginal communities and international law’ examines the relevance of Australia’s obligations under the UN International Covenant on Economic, Social and Cultural Rights (ICESCR) to policies aimed at closing down remote small Aboriginal communities. Such policies and their concomitant funding arrangements have been problematic to Aboriginal groups endeavouring to achieve their aspirations to live on and manage their traditional lands and waters. The analysis by Greg Marks indicates that the policies are also problematic in terms of Australia’s international legal obligations.

The second paper, by Dr Sean Kerins, ‘Indigenous Development in the Southwest Gulf of Carpentaria region of the Northern Territory: Opportunities and Challenges’ examines policies and developments in the Region from the viewpoint of international norms and expectations contained in instruments such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). This analysis is particularly relevant to the current controversy about the proposal to expand the huge McArthur River mine near Borroloola (see media coverage here).

To obtain a copy of Martin Place Paper No 7, contact the Secretary, ILA (Australian Branch) atsecretary@ila.org.au. Cost is $20 per copy.

Interview with Professor Gillian Triggs: A Truly International Lawyer

For our fourth profile of Women in International Law Month, Editor-in-Chief Jennifer Tridgell sat down with the President of the Australian Human Rights Commission (AHRC), Professor Gillian Triggs. She is a highly accomplished international lawyer and academic, with experience on matters from commercial law to Indigenous rights.

Professor Triggs is the incumbent President of the Australian Human Rights Commission. Previously, she was Dean of the Faculty of Law at the University of Sydney and Director of the British Institute of International and Comparative Law. Gillian has been a consultant on International Law to King & Wood Mallesons, the Australian representative on the Council of Jurists for the Asia Pacific Forum for National Human Rights Institutions, Chair of the Board of the Australian International Health Institute and a member of the Attorney General’s International Legal Service Advisory Council. She is the author of many publications on international law, including “International Law: Contemporary Principles and Practices” (Second Edition, 2011).

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